NEWS

On 16 April 2018 the Minister of Immigration, Refugees and Citizenship announced an update to the policy regarding medical inadmissibility under Canada's Immigration and Refugee Protection Act. The changes that will come into effect on 1 June 2018 will enable more applicants for permanent residence to be approved even if they have a medical condition or disability that may have previously rendered them inadmissible to Canada because of “excessive demand” on the Canadian health care and social services system.

In November 2017 I wrote in depth about the requirement for all applicants for immigration to Canada to undergo medical examinations. Some classes of immigration such as spousal sponsorship or refugees are exempt from medical inadmissibility regulations. However, for many applicants, if the applicant or any accompanying family member has a medical condition that “may cause excessive demand on existing social or health services provided by the government” they can be found medically inadmissible. The threshold for “excessive” demand was set at $6,655 per year (based on 2017 figures), meaning if the officer determined that an applicant would require care and social services in excess of this amount they would be deemed medically inadmissible.

However, this approach has long been criticized as being out-of-date and out-of-touch with Canada's current approach to inclusion and disabilities. Annually approximately 1,000 applicants are denied immigration to Canada because of medical inadmissibility, with at least a quarter of these being families that have children who require special education services that will cost more than the minimum threshold. This means hundreds of applicants are refused each year under the provision because they or their children have a health condition or disability that can be accommodated by Canadian society.

The new policy that will be effective as of 1 June will make two important changes:1- it will increase the minimum threshold considerably to $19,965 per year (based on 2017 figures), and2- it will change in the definition of “social services” so as to remove references to special education, social and vocational rehabilitation services and personal support services that an applicant may need in Canada.

The aim of this new policy on medical inadmissibility is to better balance the need to protect publicly funded health and social services with Canada's commitment and views on the inclusion of all persons, including those with disabilities.

To make this policy a reality, the federal government is making important administrative changes including creating a centralized office to make decisions regarding medical inadmissibility, ensuring that information on procedures and requirements are presented in plain-language and that the decision makers and medical officers have updated training to support these changes.

The federal government has been reviewing medical inadmissibility since 2016. However these changes will likely not be the last development in this area. The Standing Committee on Citizenship and Immigration recommended the full elimination of the medical inadmissibility policy and the federal government is collaborating with the provinces and territories to make this recommendation a reality.

Immigration laws and regulations determine the requirements to enter and the process for applying for temporary and permanent visas. They also set out the class of applicants who are not allowed to enter Canada even if they otherwise qualify as a permanent immigrant or temporary worker, student or visitor. These are people who are deemed “inadmissible” under Canada's immigration laws and are not normally allowed to enter Canada.

What is inadmissibility?You may be found to be inadmissible to Canada for a number of reasons. The top 5 reasons that you may be inadmissible are:

Medical inadmissibility: you have a serious health problem

Criminal inadmissibility: you have been convicted of a crime, or you have committed an act outside Canada that would be a crime

Security inadmissibility: you are a security risk, have committed human or international rights violations, have ties to organized crime

Financial inadmissibility: you have a serious financial problem

Misrepresentation inadmissibility: you lied in your application or in an interview

You may also be found to be inadmissible if one of your family members in your application is inadmissible for any of the above reasons.

How to know if you are inadmissible?Whether you are inadmissible depends on your specific circumstances, but the place to start is to ask yourself if have you might fall under any of these categories:

Have you been convicted of a criminal offence, inside or outside Canada?

Do you have a medical condition that requires significant medical treatment?

Do you have sufficient financial resources to support yourself (and in some cases your family members)?

Have you lied or misrepresented information to the Government of Canada?

If the answer to any of these questions is yes, you may be inadmissible. The facts of your case will be different from that of any one else and you should be careful not to make a decision based on the experience of your family and friends. You should consult a lawyer to determine if you have an actual or potential inadmissibility and what the best course of action is to deal with the inadmissibility.

Can you overcome inadmissibility to Canada?As part of the process of being assessed for entry to Canada, either for permanent (immigrant) or temporary entry (tourist, student or worker), all applicants have to satisfy the officer that they are not inadmissible and should be allowed into the country. The implication of being found inadmissible is that you will normally not be allowed to enter Canada. However, it is sometimes possible to overcome inadmissibility either by demonstrating that you have become rehabilitated or that appropriate time has passed since the event that made you inadmissible. In some circumstances you may have a valid reason to travel to Canada, in which case you may apply for a Temporary Resident Permit. In other, more complicated cases you may be have recourse by turning to the Immigration and Refugee Board or the Federal Court.

In the coming weeks I will be writing about the different types of inadmissibility and options you may have to overcome them and be allowed to enter Canada.

Over the last few weeks I have written about the legal obligations of PRs and maintaining your PR status. However, what are your appeal rights if a negative decision is made with regards to your PR status, either in Canada or at a Visa office abroad?

When and How to Appeal a Negative DecisionIf a negative decision is made with regards to your PR Card renewal application and you are in Canada, you will be issued with an order to leave Canada. You have 30 days after you receive the negative decision to file an appeal with the Immigration Appeal Division (“IAD”). You cannot be removed from Canada during these 30 days and if you file an appeal you cannot be removed until a decision is made with respect to your appeal.

If a negative decision is made outside of Canada by a visa officer that you have lost your PR status, you have 60 days to appeal the decision to the IAD. If you would like to attend your hearing at the IAD, you may be able to apply for a travel document from the IAD. The IAD has the power to order that you be allowed to return to Canada to attend your hearing if you prove that it is necessary.

Filing an Appeal & Preparing for your HearingWhile it is possible to represent yourself in your appeal, this is a complicated legal process and the consequence of the final decision is that you may lose your PR status and be removed from Canada. Filling the form to register your appeal is a simple step but preparing your appeal and defending yourself at your hearing is anything but simple. I often meet appellants who come to me after their appeal has been refused, but at that point it is very difficult for us to change the decision. Therefore if you have an appeal you should ensure that you work with your counsel to make the strongest case possible and present all your evidence at your appeal hearing.

Depending on where you are, current wait times from receiving a hearing date range from 12 to 18 months. It is important to know that your ultimate chance of being successful in your appeal depends in part on what you do after your appeal is filed. Do you remain in Canada and become more established and committed to making Canada your permanent home? For example if you were not in Canada 730 days, remaining in Canada from the time you file your appeal up to your hearing date, and taking steps to become established, will assist you in proving that there are adequate Humanitarian and Compassionate grounds in your case.

It is crucial that you are well prepared for your hearing and file all documents you intend to rely upon within the set deadlines of the IAD. In some cases there are relevant witnesses that we want to bring to the hearing to support your appeal. Your appeal is your chance to present all your evidence to the IAD but it is also your last chance to present evidence. After your hearing you will not be able to present any new documents or information and your appeal will be decided based on the existing evidence.

Residency obligation appeals involve two parties: you and the Minister of Immigration’s counsel. You will be able to present all the relevant evidence and the Minister's counsel will have a chance to cross-examine you. You should also be prepared for the Minister's counsel to fight against your case and argue why you should not be allowed to remain a PR of Canada.

Possible OutcomesOnce your hearing has taken place you are faced with two possible outcomes. The IAD may grant your appeal based on legal grounds (for example the calculation of the number of days you were in Canada was incorrect), or on humanitarian and compassionate grounds (these grounds were discussed in depth in my article last week). Or if the IAD does not agree with your appeal they may hand down a decision where you lose your PR status and a departure order is issued against you. A decision of the IAD may be appealed to the Federal Court of Canada (by either party).

If you end up losing your PR status you will need to apply for a visa before travelling to Canada. Should you wish to become a PR again, you will need to qualify under one of the existing programs and submit a new application and start all over again.​

Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.